In my previous posts on Serial, I’ve avoided writing about whether Adnan was responsible for Hae’s murder, and have focused instead on whether the state’s evidence showed that Adnan was responsible for Hae’s murder. (Spoiler: It doesn’t.) From a legal perspective, that’s the more interesting question. Moreover, for the most part, I don’t believe we can figure out what “really happened” — the state’s evidence was just too incomplete. The number of unknowns is so high that the existing record can easily support a dozen possible theories of how Hae was murdered, with no reliable way to distinguish which among them is most accurate.
At least for this post, however, I’m going to stray a bit from the legal theme, and make a proposal for what I believe “really happened.” I think that the best interpretation of the currently available evidence is that Hae was murdered at approximately 3:30 p.m., and that the Nisha Call was a pocket dial that occurred during the killer’s assault.
While there is (obviously) insufficient evidence to show this conclusively, I am reasonably comfortable in assuming that this is what happened, unless and until further evidence is made available to contradict it. Note, however, that this is only an explanation for how Hae was killed. I am not making any sort of claim as to who was responsible for Hae’s death, and there is no way to prove that with the evidence available. All I am arguing is that Hae was murdered at approximately 3:30 p.m., and whoever killed her was in possession of Adnan’s cell phone.
1. Isn’t it stupidly unlikely that a pocket dial would occur during a murder?
The “butt dial theory” has been the subject of scorn because many people (including, initially, myself) think that such an event is just too hugely unlikely, too bizarrely coincidental, to be a legitimate explanation for the Nisha Call. However, misdials during violent assaults can and do occur with surprising frequency. They aren’t likely to occur, but they aren’t unicorns, either. While I was unable to find any peer-reviewed data on butt dials during violent crimes, I did find one report, at least, that suggests unintentional cell phone calls are more likely to occur during a violent crime:
Though it only accounts for about five percent of what could be perceived as misdialed emergency calls, Hoell said there are instances when police respond to potential accidental call that turns out to be of legitimate concern. Of the 15 pocket dial calls received on August 22, there was one that alerted police to a domestic violence incident, which Hoell said is the most common silver lining in the technological advancement of cellphone emergency calls to the department.
If this statistic has any validity, then 5% of pocket dials to 911 occur during events that actually warrant police intervention. That’s not a negligible amount, and supports the possibility that pocket dials are more likely to occur during an assault than at other times. Obviously, a pocket dial during any specific assault is unlikely — but this shows, at least, that it is far from being a ludicrous possibility. The following is a (very incomplete) list of actual murders and assaults that have involved a pocket dial being made as the crime was occurring:
- “Jurors listened in horror Tuesday to the last words of a Queens woman whose screams were captured in a voice message left as she accidentally pocket-dialed her cellphone while being choked to death.”
- “While Ronald Earl Williams was stabbing his wife to death, he unknowingly created a key piece of evidence that could only exist in a wireless age. . . . Williams somehow activated his cell phone, which then called his wife’s cell phone while he was killing her, Assistant State Attorney Walter Manning told a jury on Tuesday.”
- “When police initially questioned John C. Gaumer about a woman who had disappeared, the UMBC student told investigators that he had dropped her off at her Hampden home after their first date and had driven back to his campus apartment. . . . [I]t was cell phone records that initially led investigators to the senior biochemistry major . . . ‘Cell phones are an amazing thing,’ prosecutor Susan H. Hazlett told jurors yesterday during her opening statement. She later added, ‘We get to the defendant by Josie’s cell phone records.’ Prosecutors also played for jurors a chilling phone message accidentally recorded during the attack when Gaumer’s cell phone inadvertently dialed Brown’s.”
- “Holding her head in her hands, Angelie Ortiz sobbed Monday as she listened to her screams recorded on her brother’s voice mail after her ex-boyfriend kidnapped her and their 2-year-old son, then threatened to kill her when she refused to reconcile with him.”
- “D’Lisa Kelley’s grandmother called saying she’d made an accidental phone call to her sister. ‘She could hear her screaming for her life, telling someone in the background, ‘Get off of me! Get off of me! Stop! Stop!'” said her sister, LaShaun Steward, in March. ‘It was a male voice in the background saying, ‘Shut up! Be quiet! Stop screaming!'”
- “The recording was made by Merced Police Department dispatchers after Tellez apparently ‘pocket dialed’ 911 the night of the shooting and didn’t know his phone was connected to police dispatch, according to reports from deputies.The recording, which has never been transcribed due to the difficultly deciphering exactly what was said, was described Tuesday as the main piece of evidence against Tellez.”
- “The complaint says while the attack was happening, Rashid’s cell phone pocket-dialed his girlfriend’s father, who heard his daughter screaming and heard Rashid ask her if she wanted to die. “
- “A month after a 33-year-old California Marine allegedly fractured his girlfriend’s skull, a chilling recording emerged, the result of the soldier supposedly pocket-dialing the woman during the incident.”
- “Take the case of Scott Simon, a 25-year-old Oakland Park, Fla. man whom police say unwittingly spilled the beans about his plan to murder another man just before the victim was shot and killed.”
- “The jury listened to a recording of a voice-mail message left on the phone of another sister, Crystal Harris, in an accidental call from Dulin’s phone moments before the shooting and crash.”
- “The scuffle was so intense that both Shelia and Rachel had accidentally pocket-dialed someone” while stabbing their friend to death.
- “The state said it was a pocket dial from Godfrey’s phone that put him at the crime scene at the time of the killing.”
- “She had a phone, and a pocket dial went off, and [police] believe that was during the murder when she fell to the ground . . . The friend answered the phone didn’t hear anything so hung up and didn’t think anything about it just thought it was a pocket dial.”
- “Once inside, two men entered the garage and attacked the man, punching him repeatedly and tying him up with twine, said Kennewick police. . . . But the suspects didn’t realize one of they had accidentally called 911 on his cellphone until Kennewick police officers showed up.”
- “Pierre Aragon, a member of the Loners motorcycle gang, is on trial in a Peterborough courtroom for aggravated assault, assault with a weapon, uttering threats and possession of a dangerous weapon in the beating of former member Fernando Fernandes. Two men could be heard on the accidental call that came from Aragon’s phone.”
2. Could the “one-touch dialing” system on Adnan’s cell phone have caused a pocket dial to Nisha?
Adnan’s cell phone was reportedly a Nokia 6160. According to Adnan,
Nisha’s number was entered into his phone on speed dial. You can see he calls her a lot on his cell. In fact, hers is the very first number he dials when the phone is activated on the 12th. (Episode 6.)
The Nokia 6160’s version of speed dialing was called “one-touch dialing,” and it allowed you to place a call to a saved number simply by holding down the assigned numerical key for “a few seconds.” The phone’s user manual provides that,
This feature allows you to make phone calls quickly and easily with the touch of a button.
You must store names and numbers in your phone book (see page 50) before you can use this feature. Then you can assign a name from the phone book to a one-touch dial location using your phone’s keys 2 through 8. . . .
Press and hold the key (2 through 8) for a few seconds to call the number in the corresponding one-touch dial location.
Over on Reddit, /u/BaltimoreFootStomper bought an old Nokia 6160 and tested out its propensity for pocket dialing. He found the following:
When I press a key that has a 1-touch number assigned, the phone starts calling that number in approximately 1.7 seconds.
When I press multiple keys at once, the phone just starts dialing the 1-touch number programmed for whichever key it thought I pressed first.
It appears, then, that if someone had mashed all the keys on Adnan’s cell phone and held them in for 1.7 seconds, the phone would have made a call to whichever number was associated with the key that had been pressed first. Pocket dialing Nisha would therefore have been rather trivial, and could have been caused by anything that pressed the phone’s keys in for 1.7 seconds.
At trial, Nisha testified that she did not have voicemail for the number that Adnan’s phone had dialed. A pocket dial made to Nisha’s phone, if unanswered, would therefore have simply kept ringing until the call was terminated from Adnan’s phone. Because cell phone companies in 1999 billed from “send to end,” the call would have shown up on Adnan’s call records for the entire duration of the call, even though no one ever picked up on Nisha’s end.
3. What evidence is there that the Nisha Call was a pocket dial?
The fact that pocket dials are sometimes made during assaults, and the fact that Adnan’s phone was capable of making a pocket dial, shows us only that it was *possible* for the Nisha Call to have been a pocket dial, and not that it was likely to have been one. However, a pocket dial does become a much more probable explanation where, as here, there is no reliable evidence to support the conclusion that a call had been made intentionally. (For more on this, see my post here, at #7, on why Jay’s and Nisha’s trial testimonies do not support the conclusion that Nisha Call involved a conversation between two or more people.) Moreover, all of the available evidence in this case has been consistent with (and better explained by) the Nisha Call being a pocket dial, as there is not a single witness who has testified that Adnan could have had the possession of the phone at 3:32 p.m. that day.
Of course, even if we were to assume that the Nisha Call was a pocket dial, there is no direct evidence that it occurred during Hae’s murder, and at this point, there is no way that could ever be conclusively proven. The hypothesis is worth considering, however, because it offers an explanation for all of the evidence that we have concerning the 2:30 p.m. to 3:59 p.m. time period, including an explanation for the known inaccuracies in Jay’s statements about that time period.
To show why, it is worth taking a quick look again at the map of the Woodlawn and Best Buy area, as well as the call records for the time period covering Hae’s probable death:
The following calls occurred during the relevant time period:
|2:36 p.m.||Incoming||5 seconds||Woodlawn tower B, Southeast|
|3:15 p.m.||Incoming||20 seconds||Woodlawn tower C, Northwest|
|3:21 p.m.||Jenn Home||42 seconds||Woodlawn tower C, Northwest|
|3:32 p.m.||Nisha||2 minutes, 22 seconds||Woodlawn tower C, Northwest|
|3:48 p.m.||Phil||1 minute, 25 seconds||Woodlawn tower A, Northeast|
|3:59 p.m.||Patrick||25 seconds||Woodlawn tower A, Northeast|
The Woodlawn Best Buy is located almost on top of the theoretical boundary of the territory covered by the Woodlawn tower’s northeast and northwest antennas, and well within the range of each. This means that we would expect the majority of all calls made or received from Adnan’s cell phone while the phone is at the Best Buy to be routed through either the A or C antennas of the Woodlawn tower (although a minority of the calls will likely be routed through other towers, based on tower traffic or technical considerations). On the other hand, the Southeast antenna, B, points directly opposite of Best Buy, making it less likely for any call made or received from Best Buy to be routed through that antenna.
The cell records are therefore consistent with what we would expect to see if the cell phone had been southwest of Woodlawn at 2:36 p.m., and then went to the Best Buy sometime before 3:15 p.m., where it remained until at least 3:59 p.m. This is far from the only scenario that could have occurred — and we cannot assume, based on cell data alone, that it is what in fact did occur — but such a scenario is wholly supported by the cell records.
We can say with confidence, however, that it is exceedingly unlikely that the cell phone made a trip to Forrest Park and returned at any point between 2:36 p.m. and 3:59 p.m. As the Nisha Call was made in the middle of a 45 minute period in which the cell phone remained stationary within a region that could include the Best Buy or Security Square Mall,1 it does not appear to be possible that Jay was telling the truth when he claimed the Nisha Call was made as he and Adnan drove through Forrest Park.
What does Jay say was going on during this 2:36 p.m. to 3:59 p.m. time period? Well, Jay has consistently maintained, throughout every statement that has been made publicly available, that he was at Jenn’s house until 3:40 p.m., and that Adnan’s “come-and-get-me” call was made between 3:40 p.m. and 3:50 p.m. This is the single most consistent claim Jay has made about any of the events that occurred on the afternoon of January 13, 1999; in fact, the “come-and-get-me” call is the only event which occurs at the same time under every single one of Jay’s stories.2
That does not mean that the claim is true, but it does mean that there is some reason Jay is so insistent about repeating it. Either (A) the 3:40 p.m. claim is a memory that Jay strongly remembers and feels certain about, or (B) it is a lie told for a specific purpose. Given that there were no incoming calls made to Adnan’s phone at 3:40 (meaning that the statement is either based on a false memory or else is an intentional lie); that the cell records show the phone was near Woodlawn and not Jenn’s house from 3:15 to 3:59 p.m. (meaning that Jay’s claim of being at Jenn’s during this time is very likely a lie); and that Jay changed every other statement in his stories when confronted with evidence that the statement was not true (meaning that Jay has shown a complete willingness to “correct” his memory to fit the evidentiary record in other instances, where doing so is to his advantage), the answer would appear to be B. Jay believed that his interests were best served by standing by his 3:40 p.m. story, despite the conflicting evidence, and despite the accompanying damage to his credibility that would be caused by a story that appears to be demonstrably false.3
The only apparent benefit that Jay has to gain from the 3:40 p.m. story is that it provides him with an alibi for Hae’s murder. This suggests that Jay knows for a fact that Hae was murdered shortly before 3:40 p.m., and hence needed an alibi that lasted until that time. If Hae was murdered before 3:40 p.m., the that leaves us with two time periods during which she must have been killed: between 3:15 and 3:21 p.m., and between 3:21 and 3:40 p.m. Why?
First, while our evidence about Hae’s movements that afternoon is limited, we do know that at least two witnesses (Debbie and Summer) have reported seeing Hae at Woodlawn at around 3:00 p.m. that afternoon (Episode 9) (Brief of Appellant at 14) (“The last time Debbie saw Hae on January 13 was in gym class, and Hae was happy and rushing to go somewhere at 3:00 p.m. Debbie could not remember where Hae was going, but she told police on January 28, 1999 that Hae said she was going to the mall with Don.”). Their testimony seems reasonably reliable, at least by the standards of this case, and there is no testimony or evidence contradicting their statements about the time Hae was last seen at Woodlawn.
Second, three calls occur between 3:00 p.m. and 3:40 p.m. — the 3:15 incoming call, the 3:21 call to Jenn’s home, and the 3:32 call to Nisha.
Third, someone who is committing murder by manual strangulation someone does not answer or make any phone calls while carrying out the murder.
And fourth, manual strangulation takes around three to eight minutes to accomplish.4
Assuming then that it takes fives minutes for Hae to drive from Woodlawn to Best Buy (or to a similar location near Woodlawn), then she must have either been killed between 3:05 and 3:15 p.m., 3:15 and 3:21 p.m., or 3:21 and 3:32 p.m. — or, if the Nisha Call was a pocket dial, then between 3:22 p.m. and 3:48 p.m.
We can rule out the 3:05 to 3:15 p.m. time period, because if Hae had been murdered before 3:15 p.m., Jay would not have needed his 3:40 p.m. story for an alibi. Adnan’s cell phone has an incoming call at 3:15 p.m. — and since during the second interview he was shown the cell records, and was asked to identify the time Adnan called, Jay could have chosen to say that Adnan called him at 3:15 p.m. That answer would have both fit the evidence and provided him with an alibi for the time of Hae’s death, if that is when she had actually been murdered.
We can probably rule out the 3:15 p.m. to 3:21 p.m. time period, because the window is just too small. Although it at least theoretically possible that Hae was strangled between those two calls, it would have required precision timing. Moreover, since we believe Hae was strangled while she was in the driver seat of her car, in the minutes after her murder, the killer’s primary concern was more likely to have been getting her body hidden from view, rather than calling Jenn’s home. Since that would probably take at least a minute or two, the good money is against this being the time period of Hae’s death.
That leaves us with 3:21 to 3:40 p.m. If the Nisha Call was an actual conversation, that would mean the call was either made either minutes before Hae was killed (between 3:21 and 3:32 p.m.) or was made minutes after Hae was killed (between 3:32 and 3:40 p.m.). For the reasons discussed supra, however, this isn’t likely to have occurred; not only does no one have a memory of the call occurring that is consistent with what we know from the cell records, but it is pretty implausible to assume that Hae’s killer would have been concerned with calling Nisha for 2 minutes and 22 seconds, when the killer was either already with Hae in her car and getting ready to kill her, or else after the murder, when he was in a car with her body in the middle of the afternoon, and needed to quickly get her out of sight.
The alternative explanation — and the one that I believe is a much stronger fit for the evidence — is that Hae’s murder took place between 3:21 p.m. and 3:40 p.m., and that the Nisha Call was an accidental pocket dial made during the assault. This gives the murderer a full 19 minutes in which to carry out the crime, during which no calls were received or intentionally made, which is more than sufficient time to finish the crime and take the initial necessary steps to avoid being observed (i.e., moving the body to the trunk of Hae’s car).5
This hypothesis would also provide us with explanations for the following problems raised by the existing evidence:
(1) Why neither Nisha nor Jay can remember a phone call to Nisha made from Adnan’s phone that is consistent with the cell records;
(2) Why the cell phone remained in the sectors covered by the Woodlawn tower for at least 15 minutes before and after the Nisha Call occurred;
(3) Why the Nisha Call was routed through the tower and antenna covering the Best Buy parking lot;
(4) Why the Nisha Call, if it was a butt dial, would have lasted for 2 minutes and 22 seconds without whoever had the phone noticing; and
(5) Why Jay is so adamant that he was at Jenn’s house until 3:40 p.m., when all the evidence conflicts with his claim.
On the other hand, assuming the Nisha Call was an actual conversation leaves us without coherent explanations for why no one remembers it, and why it occurred at a time and place that — according to Jay’s statement — it could not have possibly occurred.
So while we can’t know for sure that the Nisha Call was a pocket dial that occurred during Hae’s murder, it does have the benefit of being consistent with all of the known evidence (save for Jay’s testimony), and it appears to provide a better explanation of the data than do any of the alternatives.
FN1. By “stationary,” I mean that the phone remained within the L651A and L561C sectors. The phone could still have been moving within those sectors, but based on the consistency and frequency of the calls made during that 45 minute period, there is little possibility that the phone was travelling outside of those sectors.
FN2. For reference, the following are Jay’s statements about the “come-and-get-me” call from his police interviews:
Detective: Does [Adnan] call you at some point in time?
Detective: What time does he call you?
Jay: Um, time I remember talking to him, actually having a conversation with him, was about three-forty something. (Int.1 at 6.)
Detective: Okay, um, at some point you left?
Detective: Jenn’s house?
Detective: Do you have any idea what time that was?
Jay: About 3:40.
Detective: Was Jenn still there?
Detective: And where were you going?
Jay: I was going to pick up Adnan. (Int.2 at 10.)
At trial, Jay testified that he left Jenn’s house at 3:45 p.m., and that Adnan’s call from Best Buy was made at around 3:50 p.m.
Jay is not simply making a mistake here, and lose track of the time that he left. Jay said that Adnan had specifically instructed him to expect a call at 3:30 p.m. that afternoon. In fact, Jay was watching the clock, and noticed when Jay did not call at 3:30 p.m. as promised:
Um, he had told me he was, he inaudible, he was gonna need me to pick him up at a certain time, that was 3:30. I waited until 3:30, he didn’t call, I left he house, ah with his car and cell phone. (Int.2 at 11.)
Based on his own statements that he was paying close attention to the time, we can rule out any suggestion that Jay was just mistaken when he claimed to have left the house at 3:40 p.m.
Additionally, Jay’s story is corroborated by Jenn, who told the police that Jay received a call and left her house at 3:40 p.m. — which makes sense if Jay’s 3:40 p.m. story is an alibi, since Jay and Jenn conferred about when he was at her house that day before Jenn gave her police statement. But Jenn giving the exact same 3:40 p.m. story as Jay does not make sense if they were both mistaken about the time — because why would they make the exact same mistake? Here’s what Jenn said in her interview:
He just said he was waiting for a call and it was going to come around three-thirty, three forty-five, um Jay got a call and then I don’t know what was said to him in conversation um than Jay got another call, got off the phone and then another call came in and I don’t know if it was the same person or who it was and I don’t know whether it was on my phone or whether it was on the cell phone that Jay had. Um then Jay left my house, probably around three-thirty, four, four-fifteen, well after three forty-five, between three forty-five and four-fifteen. (Jenn Int. at 1-2.)
“Well after” 3:45 p.m. So specific, so close a match to Jay’s statements. She also would have gone to pick up her parents from work within a half hour of Jay leaving, so she would have had a way to orient her memory of when Jay left (i.e., “shortly before I left to get my parents”). Jenn also corroborated Jay’s claim that he was expecting to receive a phone call at 3:30 p.m. that day:
[Jay] sat the phone on the coffee table and he said “I’m waiting for a phone call” I was like, you know, “who’ s going to call you, what’s,” you know his cell phone … cell phone’s out whatever, like it’s just a cell phone … was like “I’m suppose to get a call around three-thirty” and I said “okay” and he said “that’s when I ‘m leaving, around three thirty when I get the phone call. (Jenn Int. at 9.)
Jenn also said, during that same interview, that:
I guess between three-thirty and four um the phone … a phone call came in and I don’t know if it was on my phone or the cell phone that Jay had but a phone call came in, they talked on the phone and than I want to say got off the phone and another phone call came in either um my phone or Jay’s phone and it was for Jay. Jay talked on the phone to who ever and than um and than Jay left. (Jenn Int. at 6-7).
Again, Jenn places the time of the “come-and-get-me” call at around 3:30 to 4:00 p.m., with Jay leaving shortly thereafter. But Jenn is either wrong or lying, because the cell records show that the phone was not at her house at that time (indeed, at 3:21 p.m. the phone was calling Jenn’s house).
Despite the clear testimony and police statements that unambiguously state, over and over again, that the “come-and-get-me” call did not occur before 3:40 p.m., at trial the prosecution went with the theory that Hae had died at around 2:35 p.m. because it conveniently fit their theory of the case, despite the fact that it did not actually fit the evidence. In addition to the lack of any testimonial evidence supporting the prosecution’s theory, we know, from Episode 4, that accomplishing the murder by 2:36 p.m. would have been all but impossible for the killer to actually do. Moreover, the fact the 2:36 p.m. call is 5 seconds long is also inconsistent with it being the “come-and-get-me” call, unless Adnan waited until the second Jay answered the phone, quickly said “that bitch is dead, come and get me, I’m at Best Buy,” and then immediately hung up. (Since Jay says he did not know where Adnan was going to be, Adnan would not have been likely to hang up before he could even confirm Jay had heard him correctly.) Which means the only thing suggesting that Hae died before 3 p.m. is the prosecution’s need for that to be true, in order for their case against Adnan to make any sense.
FN3. We know that Jay’s story about leaving Jenn’s house at 3:40 p.m. cannot be true. Why? The Nisha Call occurs at 3:32 p.m., and everyone agrees that Jay did not call Nisha while he was on his own. This means that, unless the Nisha Call was a butt dial made by Jay while he was at Jenn’s house, Jay’s claim about leaving Jenn’s house at 3:40 p.m. is false.
FN4. See, e.g., Commonwealth v. Serino, 436 Mass. 408 (Mass. 2002) (“The medical examiner testified that it usually takes five to eight minutes for manual strangulation to result in death.”); State v. Bingham, 719 P. 2d 109 (Wash. 1986) (“To show premeditation, the State relied on the pathologist’s testimony that manual strangulation takes 3 to 5 minutes.”). It remains possible that Hae was manually strangled between the 3:15 p.m. and 3:21 p.m. phone calls, but it seems unlikely enough that I am willing to discard it as a possibility.
FN5. If Hae was murdered shortly before 3:40 p.m., it would also align almost perfectly with Jay’s story from his second police statement, regarding the events that occurred following Hae’s death. Jay claims that after Hae is murdered, there are two phone calls that are made to or from Adnan’s phone, prior to their trip out to buy weed. The first call occurred around 3:40 p.m., and it was Adnan calling after killing Hae. The second call occurred about twenty minutes later, and was a call made to Jay’s friend Patrick.
If Hae was killed between 3:21 and 3:40 p.m., the that portion of Jay’s story could very well be true. Because we would indeed have two calls made after Hae’s murder: a call made a little after 3:40 p.m. to Phil, and a call made at 3:59 p.m. to Patrick.